Update: The
Swiss Legal System and Research

By Gregory M. Bovey (originally
published November 2006)

Update by Martin Molina

Martin Molina holds a license en
droit (law degree) from the University of Geneva and an LL.M. in
International Legal Studies from New York University. He is admitted to the Bar
in Switzerland and in New York and is currently practicing as an
Attorney-at-Law with Kellerhals in Zurich.

In general

Switzerland
is a nation shaped by the resolve of its citizens: it is not an ethnic,
linguistic or religious entity. Since 1848, it has been a federal state - one
of 25 in the world and the second oldest after the United States of America.

Switzerland
has a federal structure with three different political levels:

(i)the
Confederation (Federal State),

(ii)the Cantons
(States), and

(iii)the
Municipalities (Local Authorities), which are subordinated to the Cantons,
although they are granted certain autonomy.

The federal level

The Federal Constitution is the legal
foundation of the Confederation. It contains the most important rules for the
good functioning of the State. It guarantees the basic rights of the people and
the participation of the public. It distributes the tasks between the
Confederation and the Cantons and defines the responsibilities of the
authorities.

The
Confederation has authority in all areas in which it is specifically empowered
by the Federal Constitution - for example, foreign and security policy, customs
and monetary policy, legislation that is valid through the country and in other
areas that are in the common interest of all Swiss citizens. Tasks, which do
not expressly fall within the enumerated areas of competence of the
Confederation, are handled at the next lower level, i.e. by the Cantons.

At the
federal level, there are three authorities:

(i)the Federal
Assembly (Federal Parliament),

(ii)the Federal
Council (Executive), and

(iii)the Federal Courts
(Judiciary).

The Swiss
Federal Parliament or Federal Assembly has two “Chambers”:

(i)the National
Council (House of Representatives), comprising 200 elected Representatives (representation
is proportional to the resident population of each Canton), and

(ii)the Council of
States (Senate), comprising 46 elected Senators (two per Canton, one for each Half-Canton).

The Swiss
Federal Government consists of the seven members of the Federal Council
(Federal Councilors) who are elected by the Federal Assembly for a four-year
term. Each Federal Councilor (Secretary) heads a Department. There are,
therefore, seven Federal Departments:

The Swiss
Federal Supreme Court – which generally sits as either 3 or 5 judges,
depending on the matter being heard – acts as an appellate court,
reviewing cases which have been previously decided by lower federal and/or
cantonal courts. The Swiss Federal Supreme Court is not empowered to review the
constitutionality of federal statutes.

The Swiss
Federal Criminal Court acts as a trial court of first instance in certain
matters of federal criminal law, specifically attributed to federal
jurisdiction.

The Swiss
Federal Patent Court is the Swiss Confederation’s court of first instance in
matters relating to patents and decides on civil-law disputes concerning
patents, for instance in litigations over patent validity as well as patent
infringement.

Federal
Judges in Switzerland are appointed by the Federal Assembly (both chambers of
Parliament) for six-year terms.

The cantonal
level

Each Canton
and Half-Canton has its own constitution, parliament, government and courts.
The cantonal parliaments have between 58 and 200 seats, while the cantonal
governments have 5, 7 or 9 members.

Direct
democracy in the form of the “Landsgemeinde”, or open-air meetings of citizens,
is now confined to Appenzell-Innerrhoden and Glarus. In all the other Cantons,
voters make their decisions at the ballot box.

The Cantons
exercise all the sovereign rights, which the Federal Constitution has not
explicitly or implicitly assigned to the Confederation or does not forbid them
to exercise by a specific rule.

In the
Cantons, the judiciary is usually organized in two levels:

(i)civil,
criminal or administrative courts of first instance, generally sitting with a
single judge, and

(ii)civil,
criminal or administrative courts of appeals, sitting usually with 3 judges.

Each Canton
has an official website, containing a presentation of the different cantonal
authorities and an access to online cantonal legislation and, sometimes, case
law:

The municipal
level

All the Cantons
are divided into municipalities or communes, of which there are at present
2760. Their number is tending to diminish as these municipalities merge.

Around
one-fifth of these municipalities have their own parliament; in the other
four-fifths, decisions are taken by a process of direct democracy in the local
assembly.

In
addition to the tasks entrusted to them by the Confederation and the Canton
– such as the population register and civil defense - the local
authorities also have specific tasks of their own for education and social
welfare, energy supply, road building, local planning, taxation, etc. To a
large extent, these powers are self-regulated.

The scope
of municipal autonomy is determined by the individual Cantons, and therefore
varies widely.

See also
the Directory of local administrative authorities available here .

Languages

Switzerland
has three official languages: German, French and Italian. As such, federal legislation
is published in each official language (which are all considered equally
authoritative). Besides, Romansh is a “national language” used by the
Confederation in its relations with Romansh-speaking persons (Voyame, in
Dessemontet/Ansay, p. 11). The decisions of the Swiss Federal Supreme Court are
rendered in the language used by the parties or, where the parties use
different languages, in the language used by the plaintiff or appellant. At the
cantonal level, legislation from the Cantons of Vaud, Neuchâtel, Genève and
Jura is published in French. In the Cantons of Bern, Fribourg and Valais,
legislation is published in both French and German. Legislation from the Canton
of Ticino is published in Italian. Legislation of the other Cantons is
published in German (as well as Romansh and Italian for the Canton of
Graubünden).

Legislation

Switzerland
has a civil law legal system. Therefore, enacted or written law is the primary
source of law.

As in all
other civil law legal systems, Swiss law is divided into public and private
law.

Public
law governs the organization of the State, as well as the relationships between
the State and private individuals (or other entities such as companies).
Constitutional Law, Administrative Law, Tax Law, Criminal Law, Criminal
Procedure, Public International Law, Civil Procedure, Debt Enforcement and
Bankruptcy law are sub-divisions of public law (see Voyame in
Dessemontet/Ansay, p. 9).

Private
law governs the relationship between individuals. Swiss civil law is mainly
comprised in the Swiss Civil Code (which governs Status of Individuals, Family
Law, Inheritance Law, and Property Law) and in the Swiss Code of Obligations
(which governs Contracts, Torts, Commercial Law, Company Law and Securities Law).
Intellectual property law (copyright, patents, trademarks, etc.) is also an
area of private law. Labor law is governed by private and public law (see
Voyame in Dessemontet/Ansay, p. 9).

Swiss
laws are hierarchically ordered, according to the following rules (see Voyame,
in Dessemontet/Ansay, p. 5):

(i)federal law
takes precedence over cantonal constitutions and law,

(ii)constitutional
rules prevail over ordinary statutes, and

(iii)legislative
statutes take priority over regulations promulgated by the government or
administrative authorities.

Legislation
in Switzerland is officially published in print by the applicable federal or
cantonal Chancellery. Federal laws are published in two main collections: (i)
the “Official Collection of Federal Laws” (“Amtliche Sammlung des Bundesrechts
(AS)”/“Recueil officiel des lois fédérales (RO)”; by chronological order) and
(ii) the “Systematic Collection of Federal Law” (“Systematische Sammlung des
Bundesrechts (SR)”/“Recueil systématique du droit fédéral (RS)”; by content).
Similar collections exist in the Cantons (see Voyame, in Dessemontet/Ansay, p.
6).

Federal
and cantonal governments make their legislative materials available online,
although most governments also include disclaimers stating that the online
versions are not official.

Case Law

The
traditional method of finding relevant cases on a particular topic is to use a
case law reporter, with the most well known being the “Official Collection of
the Decisions of the Federal Tribunal” (“Amtliche Sammlung der Entscheidungen
des schweizerischen Bundesgerichts (BGE)”/“Recueil des Arrêts du Tribunal
Fédéral Suisse (ATF)”). ATF/BGE, which is also available on Swisslex
provides the most important decisions of the Swiss Federal Supreme Court (“leading
cases”), organized into discrete parts (I. Constitutional Law, II.
Administrative and Public International Law, III. Civil Law, Debt Enforcement
and Bankruptcy, IV. Criminal Law, V. Social Security).

In
Switzerland, the ATF/BGE is technically the only official reporter. Most
print-based case law reporters, such as, e.g., “Praxis des Bundesgerichts”,
“Journal des Tribunaux”, “La
Semaine Judiciaire”, are “unofficial” but are widely used by most
lawyers and judges. There are many case law reporters in print, ranging from
cantonal reporters to topical reporters (see below under “Swiss Law
Journals”).

There are
very few commercial providers in Switzerland of online law-related information,
for a fee. The major Swiss online provider is Swisslex . This database has extensive
full-text Swiss case law searchable by keyword on various fields or segments
within the judgments. This commercial database has much more depth and scope
than what is freely available on here in addition to also having
full-text legislation, journals, textbooks and newspapers.

The
decisions of cantonal courts are sometimes difficult to track down. The
official websites of some Cantons provide access to some decisions of cantonal courts
and it is also possible to check, if existing, the website of the particular tribunal
court to see what, if any, access is provided to their decisions. Swisslex
probably has the most extensive online access to cantonal court decisions.

Law Schools and the Legal
Profession

There are
9 schools of law in Switzerland, all of which are faculties of cantonal
universities; there are no “private” law schools in Switzerland. To enter a
Swiss law school, one usually needs to have graduated from high school
(“Matura”/“Maturité fédérale”). Previously, a full legal education was
evidenced with a degree obtained in four years (“Lizentiat der
Rechtswissenschaft”/“Licence en droit”). With the new “Bologna” system being
implemented in Switzerland, after three years of study, a bachelor’s degree is
delivered, with which it is possible to work as a lawyer (e.g. in enterprises
or public service), and to train as an attorney (but not to maintain a bar
practice afterwards). After two more years of study (not mandatory, but
generally recommended), a master’s degree is obtained, which evidences more
qualification or specialization. A master’s degree is required to be admitted
to the bar, and is likely to be the standard diploma sought by students, who
are not expected to commonly start a professional career after obtaining a
bachelor’s degree in law. Further postgraduate education is available (Masters
of Advanced Studies, e.g. in Business Law at the Universities of Geneva, Lausanne,
St. Gallen and Zurich). After completing legal studies, it is also possible to
complete a Ph.D. in law (“Doktor der Rechtswissenschaft”/“Doctorat en droit”),
which is the highest diploma delivered in this field in Switzerland.

Graduation
from a Swiss school of law does not guarantee the right to practice law as an
attorney in Switzerland. To be admitted to the Bar, the Swiss law school
graduate must article in a Canton, usually in the one in which he or she wishes
to practice. Although articling requirements can vary slightly from Canton to Canton,
it generally involves working for one to two years under the supervision of a
qualified lawyer, followed by passing the bar examination for that Canton
(there is no “federal” bar examination in Switzerland).

Many
Swiss law firms have websites. Some of these sites are a valuable source of
information where lawyers at the firm have published law-related articles on
their websites. Set out below is a select list of some of the larger Swiss law
firms:

Legal Literature

Legal
literature in Switzerland generally comprises commentaries, annotated versions
of the Codes and most important laws, treatises, manuals as well as articles
published in professional journals. These materials are not binding on courts
but “the judge often bases his opinion on the works of legal scholars” (Voyame,
in Dessemontet/Ansay, p. 8).

National Law Journals

Law
journals in Switzerland range from academic and scholarly to more
practitioner-oriented. Until recently, Swiss law journals were print-based but
can increasingly be found online on commercial databases such as Swisslex.
There are, however, a limited number of Swiss law journals freely available on
the Internet.

List of
selected Swiss law journals (some of which are available online):

Swiss Law Books

There is
a relatively healthy market for Swiss law-related books covering all legal
topics, most of which are published in German; there is also a good selection
of Swiss legal books in French. The individual legal publishers listed in the
next section below provide online catalogues to their own publications.